We hear from the media and elsewhere all sorts of anecdotes and reports about the vaccine rollout and employer and employee attitudes towards it. Some companies have announced they would either dismiss or refuse to hire people who will not take a vaccine. Some employers are apparently already creating vaccine databases of their workers to track who has been inoculated against the coronavirus. There is software available to purchase to do this. But is this lawful and/or necessary?
The government has made it clear that they do not intend to make the vaccine compulsory. Consent and voluntary participation seem to underpin their campaign.
Employers do not therefore have a legal obligation neither do they have a legal right to compel the vaccine, however there may be circumstances in the context of the workplace in question, where it is reasonable and appropriate to enforce such policy of requiring staff to have them. This is likely to be the exception rather than the norm as the risks associated with this are numerous. Many individuals of their own free will wish to have the vaccine, but there are others who for their own various personal reasons may choose not to.
Unless your business is one of a few obvious candidates for contemplating making vaccines compulsory (for example in health and social care, parts of the travel industry where it is a requirement to have a vaccine in order to enter a foreign country, or where work is in very close confinement and cannot otherwise be made COVID secure), then for most employers, ensuring as many of the workforce as possible take up the vaccine when available, can more likely best be achieved through informing and effective communication and the introduction of a well thought out policy on the matter.
To argue that the vaccine must be mandatory for health and safety reasons, is quite difficult with such limited data at present and particularly where there is a lack of clarity over whether vaccine can prevent transmission. It is complicated further because visitors to workplace premises or other people that your staff come into contact with as part of their job are all outside of your control, and a compulsory vaccination programme cannot therefore be viewed as a panacea or replacement for other Covid secure safety measures, at least not yet.
Whilst you may decide to introduce a policy requiring or encouraging employees to have a vaccine, you cannot of course physically force them to do so. The next question is therefore what will you do if they refuse? You can of course dismiss anybody at any stage and if you choose to dismiss an employee for refusing to have a vaccine then you may do so. For employees with less than two years’ service, they will have no ability to claim unfair dismissal, although they may have other claims which are summarised below, but for anyone with more than two years’ service this could potentially expose the employer to a claim for unfair dismissal.
This is completely uncharted territory and it is surprising to see how opinion is starkly divided even amongst legal professionals, on the point. Undoubtedly there will be test cases and outcomes are likely to vary depending upon the circumstances and including the particular workplace in question. One of the tests for unfair dismissal is whether the decision to dismiss is a reasonable one having regard to all the circumstances including the nature of the employer. One can see a distinction being drawn between the fairness of dismissal of say a health worker refusing without reasonable justification, to have a vaccine, to that of an individual working in an outdoor environment and perhaps even alone. Unless there are good justifications, such dismissals undoubtedly carry risks of being considered unfair. There is no precedent for Employers seeking to impose a compulsory medical intervention on its staff.
The situation may change however as we understand more about how well the vaccines work in providing immunity as well as preventing transmission. The complexion also changes as the number of people who have the vaccine increases. To put in place a rigid mandatory policy at this very early stage therefore may well be more difficult to justify.
ACAS has expressed the early view that employers are not able to require employees to take the vaccine and should listen to concerns if employees refuse to take it. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action. The relevant factors are stated to be:
- whether there is a vaccine policy in place
- whether the vaccine is necessary to do their job
- whether an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010
Even where there may be more compelling reasonable arguments on the part of the employer, and it is considered necessary that an employee has the vaccine in order to do their job, considerations such as an individual’s right to privacy, religious or philosophical beliefs (for example where pork products may be in the vaccine which would be a reason for members of certain faiths or vegans for example not to take it), potential disability related issues ( for example with whose suppressed immune system means a vaccine is unsuitable), and other potential discriminatory pitfalls where female employees may be pregnant for example and be concerned about ramifications for their unborn child, all complicate the picture and may inform the fairness or otherwise of a decision to discipline or dismiss, as well as lead to potential claims of various forms of discrimination.
It is possible to introduce a contractual requirement, particularly for new staff, who won’t have ordinary unfair dismissal rights, but similar considerations ultimately will apply in terms of the reasons for refusing to have one and potential discrimination and such like.
A well thought out policy which takes into account such considerations, and in the implementation of which, Employers listen to individual concerns on a case-by-case basis and which integrates with the Company’s own Health and Safety and Covid secure policies, is the best way to help mitigate against such risks.
Finally, there are data protection issues to be considered, in terms of collection and use of individuals’ medical information, and there is of course the question as to how you will know if an individual has had a vaccine given there is no standard passport or proof currently available.